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Landmark HIV prosecution appealed to Supremes

Does the court consider condom use, low viral load low risk?

An HIV-positive man sentenced to 14 years in prison after being convicted in 2008 for not disclosing his serostatus to sexual partners was sentenced to serve 10 more months. Upon release, the Sudanese immigrant might be deported.

The lengthy case, known as Mabior, has been in the courts since 2006. In October, the Manitoba Court of Appeal reduced six aggravated sexual assault convictions to two, based on condom use and his low viral load.

The high court also sent the case back to the trial judge to mete out a new punishment for the remaining two counts. He was given double-time credit for more than three-and-a-half years of time already spent in custody, and he will be finished his sentence in 10 months. On paper, he will be recorded as having served an eight-year sentence.

At a Dec 1 hearing, Ian MacNair, the defendant’s lawyer, motioned for his client’s immediate release. Crown Wendy Friesen argued he should serve two more years in prison.

After the Dec 16 decision, which would have the defendant released by next fall, the Crown submitted an application to the Supreme Court of Canada.

In an interview with Xtra, MacNair says the Supreme Court application has two stages to pass. The first stage is whether it is of national importance. The second stage is whether the Cuerrier decision needs to be updated, considering how science has been applied in the last several years.

The defendant, whose complainants were mostly teenage female runaways, was branded a predator in the media. MacNair would not comment on whether his client would be deported or not. He only said it was an open issue.

“Physically, he’s in good health. And he does have support in the community,” says MacNair.

In her 62-page decision last October, Justice Freda Steel found the trial judge was wrong to conclude everyone who had sexual relations with the accused was exposed to “significant risk.”

In the four overturned sex assault convictions, Steel referred to medical evidence that showed the risk of exposure was low when the accused wore a condom. The judge also cited evidence that the accused’s antiretroviral therapy meant there was a “high probability” he wasn’t infectious.

The decision also stated:

“The law, with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in Cuerrier, attaches criminal liability to the failure to disclose one’s positive HIV status only when there is a ‘significant risk of serious bodily harm,'”

And:

“That determination will vary depending on the scientific and medical evidence adduced in each particular case. In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of ‘significant risk,'”

And:

“Although the accused knew that he was HIV-positive, and despite medical warnings to the contrary, he did not disclose that condition to the complainants, who, with one exception, would not have consented if they had known he was HIV-positive… I can well understand that those complainants feel, in their opinion, that the nature and quality of the sexual act was fundamentally changed by the lack of disclosure of the risk of disease.”

Last October, Cecile Kazatchkine, HIV/AIDS Legal Network spokesperson, said Mabior is a legal landmark among Canadian HIV-nondisclosure cases. She pointed to the 1998 Supreme Court of Canada’s R vs Cuerrier decision, which decided a poz person can be convicted of aggravated sexual assault for not disclosing his or her serostatus to sex partners before engaging in an activity representing a significant risk of HIV transmission.

“[Justice Steel] stated very clearly that the test set out in Cuerrier was not a ‘no risk’ test but required the presence of a significant risk. The Court further explained that ‘significant risk’ means something other than an ordinary risk. It means an important, serious, substantial risk. The Court of Appeal also stated that legal assessments of risk in this area should be consistent with the available medical studies and acknowledged the application of the legal test in Cuerrier must evolve to account appropriately for the development in the science of HIV treatment. As a result, the Court decided that the careful use of a condom or an undetectable viral load can reduce the level of risk below the threshold test of a significant risk,” says Kazatchkine.